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Re: 9th Cir. License Primer

From: RJack
Subject: Re: 9th Cir. License Primer
Date: Tue, 29 Mar 2011 17:14:11 -0400
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The SFLC is eager to cite Second Circuit authority when it suits its

"...[T]he Second Circuit in Salinger abrogated the longstanding practice
of presuming irreparable harm based upon the plaintiff's prima facie
claim of copyright infringement... [T]he Second Circuit has approved of
this practice. See e.g., Pharmaceutical Soc'y of New York, Inc. v. New
York StateDept. of Soc. Servs., 50 F.3d 1168, 1174-75 (2d Cir. 1995).";
Plaintiff's Memorandum on Motion.

But when it doesn't suit it purpose the SFLC chooses to utterly ignore
Second Circuit precedent such as:

"One party's breach does not automatically cause recission of a
bilateral contract. See Fosson v. Palace (Waterland), Ltd., 78 F.3d
1448, 1455 (9th Cir.1996) (recognizing "the rule applied in other
circuits that once a non-breaching party to an express copyright license
obtains and exercises a right of rescission by virtue of a material
breach of the agreement, any further distribution of the copyrighted
material would constitute infringement") (emphasis added);
Hyman v. Cohen, 73 So.2d 393, 397 (Fla.1954) (" "A material breach, as
where the breach goes to the whole consideration of the contract, gives
to the injured party the right to rescind the contract or to treat it as
a breach of the entire contract....' ") (quoting 12 Am.Jur. Contracts §
389) (emphasis added); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright §
10.15[A], at 10-125-126 (1996) (" Upon such rescission, the assignment
or license is terminated and the copyright proprietor may hold his
former grantee liable as an infringer for subsequent use of the work.")
(emphasis added)."

Now, the SFLC utterly ignores the circuit precedent and claims:

"Further, once Best Buy made a distribution of BusyBox that did not
comply with the license terms, the license terminated, and therefore any
further act of copying or distributing BusyBox by Best Buy (even if in
compliance with the license) is without Andersen's permission.
Andersen Decl. Ex. 2, § 4 (“You may not copy, modify, sublicense, or
distribute [BusyBox] except as expressly provided under this License.
Any attempt otherwise to copy, modify, sublicense or distribute
[BusyBox] is void, and will automatically terminate your rights under
this License.”)."; Plainiff's Reply Memeorandum.

The games have begun!

RJack :)

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